Pursuant to the provisions of the Act of 28 November 2003 on family benefits (Journal of Laws of 2025, item 1208), family allowance and allowance supplements, as well as other benefits provided for in this Act (collectively referred to as family benefits, listed in Art. 2 of this Act), are available to Polish citizens and, in specific cases, to foreigners. To be eligible to apply for this allowance, two conditions must be met. First, you must be the parent, legal guardian, or actual guardian of the child, or a student. Second, you must demonstrate adequate income, which is calculated by adding the income of all family members and then dividing the resulting amount by the number of family members. The basic income criterion specified in the Act in this regard is currently PLN 674 per person. This amount was most recently announced in the Regulation of the Council of Ministers of August 13, 2024, on the amount of family income or the income of a student constituting the basis for applying for family allowance and special care allowance, the amount of family benefits, and the amount of caregiver allowance (Journal of Laws of 2024, item 1238). There is a question whether the income of a spouse who is de facto separated should be included in this calculated amount, in a situation where, although a divorce has not been granted (for example, legal proceedings are pending), the parties do not live together and have no contact. Unfortunately, the structure of Article 3, Section 16 of the aforementioned Act refers to specific family members and does not allow for their actual relationships to be taken into account when assessing family status within the meaning of this Act. This position was supported by the Supreme Administrative Court in its judgment of January 14, 2025, file reference I OSK 405/23. Therefore, regardless of the factual relationship between the spouses and the ongoing divorce proceedings, the spouses are treated as a family, and the income of both spouses will be taken into account when calculating whether the criterion for receiving family benefits is met. Particular attention should be paid to situations where one spouse receives benefits and the other, de facto separated, fails to inform the first spouse that they have taken up employment whose income exceeds the income criterion for receiving the benefit, mentioned above. In such a case, the administrative body may order the repayment of the unduly received benefit in the appropriate portion, starting from the date of commencement of employment. Finally, it should be emphasized that the situation would be different in the case of a formal separation ordered by the court – in such a case, the income of the second spouse is not included in the family limit. (see, among others, judgment of the Provincial Administrative Court of 20 June 2012, file reference II SA/Po 267/12). The court's decision on formal separation is therefore important for determining the right to receive family benefits in the form of family allowance and supplements.
